Anti-Phase III Motion Passes, but New Resolution Raises Doubts

Photo courtesy of OPPRC

The New Orleans City Council’s Criminal Justice Committee convened July 27th to discuss the motion, M-21-276, which was deferred during their July 17th general meeting. At that previous meeting, the council unanimously voted for R-21-274, which signaled that the Council would “strongly support a retrofit of the current jail, specifically the Option 3 retrofit plans in the July 23, 2020 JFA Institute report, over a new Phase III building.” 

The motion would pass 5-0 and a new resolution would be deferred for vote until a later date. The issue at-hand is the planned construction of a new jail facility for detainees with acute and sub-acute mental health issues. In line with the federal consent decree placed on New Orleans seven years ago, U.S. District Judge Lance Africk has maintained the necessity of this facility, despite massive positive shifts in the New Orleans criminal justice system and unified public opposition to the new facility. The Mayor’s office has consistently opposed the facility and has appealed it in court. Community groups, such as the Orleans Parish Prison Reform Coalition (OPPRC), have also consistently opposed any new jail development and stand behind the retrofit option. Now the city watches the council.

M-21-276, authored by councilmembers Palmer and Banks, was intended to direct the City Planning Commission to conduct a public hearing to consider amendments to existing ordinances that established a conditional use permit for the Phase III facility, such that the retrofit option could be considered on equal footing as Phase III by the CPC. That was the intent, at least, but the opening presentation and read letter from Bob Rivers, Executive Director of the CPC, added nuance to the ongoing discourse.

The Committee meeting opened with a presentation by James Austin, corrections consultant and president of the JFA Institute, Pres Kabacoff, developer and criminal justice reform advocate, and William Snowden, director of the Vera Institute of Justice’s New Orleans office. James Austin and his JFA Institute did the original research to suggest that a retrofit option would be sufficient to reach constitutional compliance. Judge Africk has repeatedly denied the possibility of a retrofit alternative, but Judge Africk has also never seen the data and images shown by Austin during his presentation to the council. 

An Actual Retrofit Plan

James Austin outlined the current situation of the city’s inmate population. Presently, we have 823 inmates, 1,438 beds in Orleans Justice Center (OJC), and 1,736 beds total if you include the Temporary Detention Center (TDC).

This indicates that we have plenty of beds for inmates already, but the question is whether those facilities provide sufficient care for mentally ill inmates in line with constitutional standards. In the status quo, all inmates are screened for mental illness and psychotropic medications are received and monitored by Tulane psychologists. All acute and sub-acute patients who would occupy the proposed Phase III facility are separately housed in OJC Pod 2A and the renovated TDC with beds to spare – this accounts for about 55 inmates. 

The issue is that it has not been demonstrated to the federal monitor that all of the inmates are receiving sufficient out-of-cell services (individual and group counseling), there is insufficient interview space in OFC to provide this, and there is a chronic shortage of security staff to fill budgeted positions. Austin stated that the facilities are about 100 security staff short without even considering how many might be specially needed for transferring acute and sub-acute inmates. 

Austin clarifies that the issue doesn’t seem to be with the facility, but with the services of the group contracted to run the jails. The city contracts Wellpath, a Nashville-based carceral healthcare provider, to manage these facilities. So far, Wellpath says they’re delivering the services necessary to meet constitutional compliance, but has not demonstrated this to Austin or the monitor. As such, Austin and an independent monitor are going forward with an audit to unveil the truth behind the facilities to help us all move forward. 

Regardless of Wellpath, Austin’s highlighting of security staff shortages raises a whole new question about the Phase III facility. A new jail facility would require the city to find at least 100 more security staff on top of the existing shortage. Councilmember Banks pointed to this conundrum and asked Austin if a Phase III facility could lead to a never-ending consent decree. Austin replied coldly and surely, “You will be like the Rutherford decision in Los Angeles, which has lasted for 40 years.” 

Austin, however, is optimistic about a retrofit option, “you actually have all the space you need to get into compliance with the consent decree.” Austin broke down the relative costs of Phase III versus the retrofit plan.

Austin went out of his way to point to his lack of bias in this territory, reminding the council and public that he has urged for jail development in manner other municipalities, like Los Angeles and New York City. Despite this, Austin told the council, “you have a brand new facility, that can be easily renovated to provide the care that’s necessary,” and continued, “as a planner, I just kind of scratch my head.” The graph above also points to the issue of double-celling wrapped into Phase III’s design plans. Phase III would only provide 19 single cells, which would make double-celling inevitable. Austin was very clear in stating that acute patients should not be double-celled and are not at other facilities. Given the risk this supposes, it’s unclear how Phase III would meet the consent decree, even if we could staff it properly.

Importantly, Austin presented some floorplans and digitally rendered images that give us insight into how the retrofit might look. These images and plans are big steps towards having a presentable plan that all parties might agree to, instead of Phase III. 

Snowden argued similarly, pointing to the superfluous and deleterious design of Phase III stating, “we’re talking about issues that don’t necessarily get solved by a building,” insisting that all relevant parties should come together and reach an agreement. He urged the council to remain steadfast in support citing Abraham Lincoln’s quote, “I know more today than I did yesterday.” Councilmember Joe Giarrusso III asked Snowden about existing case law that would put the council in a favorable legal position and further insinuating that the New Orleans city council would meet the same fate as the St. Bernard Parish Council who were fined as a body and individually for disobeying a federal court order from Judge Helen Ginger Berrigan and violating affordable housing laws. However, Pres Kabacoff put it best when he said that the comparison between Judge Berrigan and Judge Africk was specious, “racial discrimination was not something [Judge Berrigan] would tolerate…but when you all are acting responsibly, and looking at real alternatives, I don’t think a federal judge will say ‘Gee – don’t do that.’”

Given that these plans only indicate renovations, not reconstruction, the role of the CPC begins questionable. A letter signed by Robert Rivers, executive director of the CPC, was read by Stephen Kroll of the CPC to the council. In short, the letter stated that the council needed to submit a full application for the retrofit with plans (similar to the one’s presented by Austin), but that an amendment would likely be unnecessary given that the retrofit supposes no exterior changes or new population limits. It also clarified that while “this is in no way meant to dismiss the important criminal justice and policy issues in this matter” the CPC does not evaluate applications in terms of preference and could very well approve both the Phase III and retrofit applications. Then it would come down to whether Judge Africk would like to revisit the question of alternatives.

Public comment reiterated the unified and clear position of the community-writ-large. However, it also made clear a new concern on the mind of community advocates, the question of whether the council was wavering in its opposition. OPPRC was in attendance, having lead the fight against Phase III for three years now, and made clear that the council’s affirmation of discussion and openness to alternatives should not usher in some new third alternative that the community has no say over. Dr. Vern Baxter of the University of New Orleans reminded the council of the Prison Litigation Reform Act, which bars federal court-ordered prison construction in favor of the city council. Many online comments were read, the vast majority being in favor of the motion.

A Questionable Resolution

Councilmember Giarrusso put forward a resolution requesting that the City Attorney request a conference with the Court to discuss alternative option(s) than those previously litigated in the OPSO Consent Decree Litigation. He continually emphasized the discursive element of it, insisting that the purpose behind this was to simply find a resolution with all parties. 

However, there’s an issue – the retrofit has been litigated, it’s just been litigated poorly because Judge Africk hasn’t looked at any significant research regarding the retrofit plan. This discrepancy was apparent to OPPRC who spoke out extensively against the resolution. Lexi Peterson-Burge, OPPRC’s deputy director, argued that it goes in direct contradiction to the resolution, R-21-274, passed unanimously that signaled strong support of the JFA retrofit plan specifically. 

Also representing OPPRC, Bob Murrell, who is also running for Giarrusso’s District A council seat in October, pointed to Giarrusso’s exhibited concern over personal federal fines as a possible explanation for the resolution. He further reminded the council that the federal court has not been presented with the information Austin and JFA have put together and that to give up the retrofit plan so quickly would be unwise. 

Giarrusso claims that he simply wants to have a third option ready in case the 5th circuit court affirms the district court decision, but if the district court had insufficient information, so does the circuit court. 

Further representatives from OPPRC voiced concern over the language and principle of the resolution. Executive director, Sade Dumas, criticized the notion of dialogism championed in word alone by the resolution, arguing that it’s unclear how the community and the affected prisoners were included in the resolution’s dialogue. While the public has been able to have a voice over the retrofit and have strongly supported it, it appears that the resolution could perhaps disenfranchise those who have worked for years to have a voice in this discussion.

The majority of online comments spoke in opposition to the resolution. Councilmembers Banks and Palmer asked that amendments be made to the resolution, which councilmember Giarrusso ceded to, and vote on the resolution was deferred.

In summary, OPPRC provided comment on the meeting and reaffirmed their opposition to Phase III. Dumas stated: “From today’s presentation at the Criminal Justice Committee meeting, it’s clear that we can meet those constitutional standards of care for people in the Orleans Justice Center by retrofitting the current facility instead of building a $51 million facility. New Orleans does not need to invest more funds in carceral settings. Instead, we need to invest in mental healthcare in the community. Medical professionals, correctional planning professionals, and the community all agree that a retrofit option is the best way to meet constitutional compliance. We urge the New Orleans City Council to continue this stance with their constituents and the Mayor as this matter is being appealed in a higher court.”

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